Written by Mark R.
Hawthorne, Sharon L. Plotkin & Bracey-Ann Douglas
An excerpt from the forthcoming 2nd Edition of Fingerprints: Processing, Analysis, and Understanding
EVERY FINGERPRINT EXAMINER may be called on to testify about the identification or nonidentification of a
fingerprint. This process, while sometimes daunting, may be undertaken as a
professional through practice and persistence. Like anything else in life, the
inexperienced examiner may be intimidated initially by the setting of the
courtroom and all of the court attaché. As one becomes more experienced and
comfortable, the process of presenting a case in court becomes more manageable.
As a witness, the fingerprint examiner will be called on to testify as an
expert. The judge will grant expert status based on the knowledge, training,
and experience of the fingerprint examiner. The following are guidelines that
the examiner may practice and use to present a case.
During an investigation/comparison
the fingerprint examiner should always bear in mind that a case may end up in
court. Having that in mind, examiners should constantly attend trainings,
conferences, and conduct research to prepare themselves for that eventuality. There
are three distinct phases of the court process one should consider: preparation,
presentation, and review.
Preparation of the ExhibitIn preparing for court, an examiner will need
to gather all evidence in the case to present to the prosecutor, the jury (if
needed), and to the court in a professional and non-biased manner. However, the
preparation begins through the education and training phase prior to comparing
fingerprints for testimony.
As a fingerprint examiner, one must receive
basic, modern, and advanced fingerprint training to become a credible witness.
For example, having basic knowledge on fingerprint patterns, knowing the unique
characteristics that may be found within a fingerprint, and the ACE-V
methodology will be of great advantage during testimony (Figure 1). In the long
run, having such credentials will also assist the examiner in qualifying as an
Another aspect of the preparation phase
includes preparing the evidence for court. A fingerprint examiner should bring
the physical evidence, or comparison cards, and results to court. In cases
where an examiner needs to explain the process of comparison to the jury,
visual aids may be useful in explaining to the lay witnesses.
Keep in mind that the chain of custody and
integrity of the evidence must be maintained. Visual aids may include
fingerprint lift cards, comparison enlargements, ten print cards, and
photographs. Be sure that the enlargements and photographs are clear and free
from distortion in the ridge details of the fingerprints. Additionally, one may
need to generate a brief report that includes the procedures taken to process,
analyze, and compare fingerprint evidence. If a report is generated, it must
entail important dates, times, and case numbers. Check the report, proofread,
and ensure that it is free from any errors prior to presenting in court.
Courtroom EtiquetteAppearance is another key aspect in preparing
for court. It is imperative to understand that the role of a fingerprint
examiner may determine the conviction or innocence of an individual. Therefore,
one must dress in a professional yet unbiassed manner. Consider the following
attire when preparing for courtroom testimony:
Another facet to the
preparation phase is for the examiner to prepare to testify as an expert
witness in the lifting, comparison, and identification of latent and known
fingerprints. Although the inexperienced examiner may testify as a lay witness,
it will be only a matter of time before the witness is called upon to give
expert testimony. Let us first define an expert. By law, an expert is someone
who possesses knowledge or skills above or beyond that of a layperson. A more
usable or definitive definition would be:
One who, by a
combination of knowledge, training, and experience, has reached a high level of
proficiency in a specific field or endeavor, and who has been so recognized by
the court as an expert.
Fewer restrictions are placed on the expert
witness. An expert witness may render an opinion while a lay witness may not.
The expert witness is also perceived to be of a higher caliber or carrying more
weight than lay witnesses.
In order for a fingerprint examiner to
qualify as an expert witness, he or she must undergo the process called voir
dire, or the questioning of the individual’s qualifications. The voir
dire is a series of questions that are asked of the witness to establish
his or her credentials as an expert. This process can also be referred to as
the direct examination of the expert witness. At the end of the examination,
the judge will determine if the witness may testify as an expert in the field
Courtroom TestimonyAfter the preparation phase—which includes
the pre-trial conference or deposition—is completed, the respective parties
(defense, prosecutor, and witnesses) should be ready to testify in the
The examiner may be called
on to testify in a preliminary hearing, before a grand jury, or at trial. One
might ask, what is the difference between a preliminary hearing, a grand jury
hearing, and a trial? Why should one be concerned about the different types of
The preliminary hearing and
a grand jury hearing are proceedings to establish probable cause to warrant a
trial. The extent of the testimony that will be required in a preliminary
hearing and before a grand jury may not be as extensive as trial testimony. The
examiner who is called on to testify in any of the proceedings must be prepared
to testify as an expert and a professional. Personal feelings have no place in
the proceeding. The examiner must remain vigilant, neutral, and testify on
the strength of the evidence. The judge or trier of fact (jury) will make
the decision or verdict based on the evidence.
Presentation of the ExhibitUpon
presenting fingerprint evidence in court, whether it be comparison results or
actual fingerprint cards, the examiner must always remain neutral. The exhibit
should first be admitted into evidence and presented to the judge for approval.
The expert witness is then provided the opportunity to introduce the exhibit to
the jury for testimonial purposes. When presenting any fingerprint evidence to
the jury, it is imperative that the examiner explain in a way for the jury to
comprehend. For instance, it is not typical for individuals on the jury stand
to understand the daily duties or processes of a fingerprint examiner.
Therefore, fingerprint terms should be explained at a basic level of
understanding (Figure 3).
case that allowed fingerprint evidence in the courtroomThis
case would be the first court case that allowed fingerprint evidence into the
courtroom. The fingerprints that were presented in People v. Jennings
positively identified Thomas Jennings as the killer of Clarence Hiller.
On September 10, 1910, Thomas Jennings
burglarized Mr. Hiller’s residence and made contact. They were involved in a
physical altercation causing them to fall down the stairs. Mr. Hiller was shot
twice by Thomas Jennings, who fled the scene when Mrs. Hiller screamed out. Mr.
Hiller succumbed to his injuries. The residence was later processed, and
fingerprints were found in an area that was freshly painted. Later that night,
when Thomas Jennings was stopped and questioned, he was also found to be
carrying a loaded firearm. A routine records check revealed that he was
recently released from serving a sentence for burglary and was on parole.
Fingerprint examiners compared the fingerprints from the scene of the murder to
fingerprints that were on file for Thomas Jennings, and they made a positive
identification. Jennings was later convicted for the murder of Mr. Hiller on
February 1, 1911.
ReviewAs stated earlier, every
time you testify, it should be viewed as an opportunity to improve your skills
as a witness. The review facet allows for just such an opportunity.
When one completes their
testimony, one should confer with other, more-experienced members of the
discipline and discuss strategies. Compare notes between what you did and what
the more-experienced examiner/witness has done. If possible, request a copy of
the transcript for review and to share with other members of the discipline.
Where possible, a member of your unit—a peer or supervisor—should also be present
in court during the proceeding to conduct an evaluation of the examiner/witness
testimony and court presentation. Questions you should ask:
The review phase of the
court process is very valuable as an educational tool. But remember, we are our
own worst critics. Do not be unreasonably hard on yourself. Do not be
unreasonably critical. Do not analyze the “what ifs.” You can “what if”
yourself to death, figuratively speaking. Do not assume a defeatist attitude.
After all, we are all human and we make mistakes. We want to minimize any
mistakes to lessen the negative impact to a case.
Ultimately, if one assumes
a professional posture and practices accordingly, one will not experience the
shortcomings of an unprofessional, unprepared examiner/witness. Practice is the
key to success. If examiners keep that thought in mind, their future will be
positive. To accelerate the learning curve of testifying in court, there are
many courtroom testimony courses available. The examiner/witness should, as
early as possible, enroll in a courtroom testimony course. How better to become
proficient than by practice and training? To borrow an adage from a colleague
who appropriately describes the feeling of testifying, “There’s nothing wrong with
having butterflies in your stomach, as long as they are flying in formation.”
Challenges to the Science
of FingerprintsLegal issues challenging
fingerprints as evidence have long been present within the criminal justice
system. Most of the previous challenges have centered on two main issues: How
were prints obtained? Have the prints been properly maintained? The age-old
issues have been discussed earlier in the book as legal and scientific
issues. These issues have been effectively dealt with by demonstrating that the
evidence was obtained in accordance with accepted standards that are common
practice within the forensic science community, and that the chain of evidence
has been maintained.
After more than three-quarters
of a century of using fingerprints as a form of evidence, the issue of
fingerprints and the methodology associated with fingerprint identification began to be challenged. In recent years, specifically, challenges have been made
to the methodology through which an identification/individualization is made.
The challenges to this process have become known as Daubert challenges.
Of all the Daubert challenges that have been filed (in excess of 30),
none to date has been successful. That is not to say that the field of
fingerprint identification is perfect. Challenges only serve to demonstrate
that the integrity of the science of fingerprints remains intact and the
necessity for the fingerprint practitioner to be trained, proficient, and
remain vigilant is critical.
To do a complete analysis
of the issues and court cases surrounding the Daubert issues in this
publication is impractical. However, a quick overview to expose the beginning
practitioner to the legal issues associated with Daubert is certainly in
order—and this will provide the practitioner with a foundation and exposure to
some of the legal issues associated with the science of fingerprints.
From a historical
perspective, the first case to challenge the issues of methodology and
testimony allowable by an “expert” was Daubert v. Merrill Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). This initial case required the
court to decide the admissibility of scientific expert testimony. What was
established in Daubert was the standard of acceptability of testimony
regarding Federal Rule of Evidence 702, specifically five issues:
In a companion case, Kumho
Tire Company, Ltd., et al. v. Patrick Carmichael, etc., et al. (March 23,
1999), the court held, “setting forth the trial judge’s general ‘gatekeeping’
obligation … applies not only to testimony based on ‘scientific’ knowledge, but
also to testimony based on ‘technical’ and ‘other specialized’ knowledge.”
Hence, the court upheld its posture of allowing expert testimony by other than
scientific experts as mandated in rule 702.
Federal Rules of
Evidence Rule 702If scientific, technical,
or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify thereto in the
form of an opinion or otherwise.
So, in a post-Daubert and
Kumho era, the application of testimony of experts has been slightly
modified. In part, the new application is as follows: If scientific, technical,
or other specialized knowledge will assist the trier of fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, provided
The applicability of the Daubert
standard specifically with regard to fingerprints was established in 1999
in U.S. v. Byron Mitchell.
About the AuthorsMark R. Hawthorne, now retired, was
previously a professor and faculty member at the City College of San Francisco,
where he started teaching in 1985 in the Administration of Justice programs and
had also served as the coordinator of the forensic science program in criminal
justice. In addition, was an instructor at Skyline College in San Bruno, California
among other universities. Hawthorne is a retired member of the San Francisco
Police Department after serving with distinction for 29 years, the last 23 as a
crime scene investigator. During his career, Hawthorne processed more than
3,000 crime scenes, thousands of pieces of evidence, and has testified as an
expert witness numerous times in California state courts as well as U.S.
district courts. He has been an International Association for Identification
Certified Latent Print Examiner as well as a Certified Senior Crime Scene
Sharon L. Plotkin holds a Master of Science
degree in Criminal Justice with a minor in Psychology from Florida International
University. She received her certification through the International
Association for Identification in 2006 and has been doing crime scene work for
almost 20 years. She has handled thousands of cases ranging from burglaries to
homicides and suspicious death cases. Plotkin has also been teaching at the
college level for almost 13 years.
Bracey-Ann Douglas holds a Master of Science
in Management with a Concentration in Criminal Justice Administration from St.
Thomas University. She has been in the criminal justice field for the past ten
years, where she obtained numerous trainings in the field of fingerprints and
crime scene. She was trained at the FBI Headquarters in Clarksburg, West
Virginia at the Criminal Justice Information System Section on fingerprint
identification, comparison, and courtroom testimony. Douglas is currently a
police officer in the Miami-Dade County Police Department, Northside District,
where she handles numerous homicide cases.